Standing Committee D

[Mr. Joe Benton in the Chair]

Justice (Northern Ireland) Bill [Lords]

Clause 2 - Membership of the Commission

Dominic Grieve: I beg to move amendment No. 11, in
clause 2, page 2, line 8, leave out subsection 2.
 At the risk of going over ground that was touched on in the other place, we cannot allow subsection (2) to pass without probing the Government on the changes that they have introduced. The Minister will be aware that the Justice (Northern Ireland) Act 2002 provided that a judicial member of the Judicial Appointments Commission would hold office, in effect, for such a period as was linked to his tenure as a judge, unless, of course, he opted to come off the commission. The change provides for a ceiling limit of 10 years' service and for such a member not holding office for more than five years at a time.
 I am not unsympathetic to the Minister's aim. I can see the merit of a throughput of people providing expertise to the commission, but the point was rightly made in the other place that the number of judges available to do the work is pretty limited. There must be concern about whether there will be the required number of judges willing to do the work, because it is probably quite onerous, and whether we will end up with a shortage of judges. At the same time, judges who have been doing excellent work will not be able to continue as a result of the provision. I should be grateful to hear the Minister's explanations and views on the subject.

John Spellar: The 2002 Act already places time limits on the other members of the commission—the lay members and the legal professionals—and it seems sensible to treat all members consistently. Under the proposed time limits, judicial members would be able to serve for up to an aggregate of 10 years, and a judicial member could be appointed afresh on being appointed to a different judicial tier. I trust that that will help to assuage the concern that the hon. Gentleman expressed that the time limits could unduly restrict membership of the commission. We do not regard the provision as unduly restrictive. Indeed, we are confident that we will have no difficulty in finding judges of the highest calibre to serve on the commission. I hope that I have reassured him on that.

Alistair Carmichael: I should like to push the Minister a little further on the issue. I broadly agree with the terms of the amendment tabled by the hon. Member for Beaconsfield (Mr. Grieve). I, too, am interested to know the genesis of the change. It seems not to have
 been in the review or even in the joint declaration. Did the Government agree to it as part of a discussion with one of the other parties? That is something on which we have made our views known in the past. I am sure that there must be a good reason for the proposal, but we established in this morning's debate that there was no particular necessity for lay and non-lay members to be treated alike, so I should like to hear exactly what the Minister is getting at here. Is there a good reason for the change or, as we are talking about judges, is it just some ministerial frolic?

John Spellar: That is scarcely likely. To some extent, the point was made by his hon. Friend the Member for Beaconsfield.

Alistair Carmichael: He is not my friend.

John Spellar: The hon. Gentleman seemed so friendly. It just shows that, as always with the Liberal Democrats, appearances can be deceptive. The point is that 10 years is quite a significant period and, even though I accept that there is a limited pool—that point was also made in the House of Lords—we want to engender some throughput. For that reason, we have proposed the change.

Dominic Grieve: I am grateful for that explanation, but I am not completely satisfied with the answer that the Minister gave to the hon. Member for Orkney and Shetland (Mr. Carmichael) about the genesis of the change, although I can see that there is a degree of logic behind bringing the lay and judicial members into line. My experience in many areas of life is that it tends not to be a good thing for people to stay on committees for too long; it is always desirable for new people to join.
 The Minister has not answered adequately, which will leave the lurking suspicion that there may be an agenda along the lines of that to which the hon. Member for Orkney and Shetland—whom I would call a friend in any place outside this context—referred. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Andrew Hunter: My position on the stand part debate on clause 2 is very much the same as the position that I adopted on clause 1. Despite all the arguments that we have heard from the Government, I still believe that the concept of ''reflective of the community'' is fundamentally flawed and therefore wholly undesirable. I maintain that appointment to places on the commission should be based exclusively on the quality and qualifications of individuals. Unless clause 2 is amended along the lines proposed by the right hon. Member for Upper Bann (Mr. Trimble), I will find it unacceptable, and although I do not propose to force a Division on the clause, I wish to put on record my opposition to it.
 Question put and agreed to. 
 Clause 2 ordered to stand part of the Bill.

Clause 3 - Duty of Commission to secure judiciary reflective of the community

Andrew Hunter: I beg to move amendment No. 24, in
clause 3, page 2, leave out lines 24 to 38.

Joe Benton: With this it will be convenient to discuss the following amendments: No. 12, in
clause 3, page 2, line 25, after 'of', insert 'continuous'.
 No. 31, in 
clause 3, page 2, leave out lines 26 to 38.
 No. 56, in 
clause 3, page 2, line 26, after 'of', insert 'continuous'.
 No. 13, in 
clause 3, page 2, line 36, at end insert— 
 '(11) The Commission shall submit a report annually to the Lord Chancellor on the progress of the programme of action and the Lord Chancellor shall lay this report before Parliament.'.

Andrew Hunter: The amendment is the first of three that I have tabled at the request and on behalf of the Democratic Unionist party. I hope that the Minister will recognise that in his reply. My place on the Committee is due to my having been nominated by the Democratic Unionist party.
 The purpose of amendment No. 24 is straightforward and transparent. It seeks to address an important part of our grave concern about the Bill, as expressed on Second Reading. That concern was shared by all Northern Ireland Unionist Members and by many Conservative Members. 
 If the amendment were accepted, the Bill would require that: 
''The selection of a person to be appointed, or recommended for appointment, to a listed judicial office . . . must be made solely on the basis of merit.''
 No other consideration of any nature whatever would be taken into account—only a candidate's merit. 
 Sadly, nothing that the Government said on Second Reading or that the Minister said this morning significantly calms our fears on this matter. I agree with the right hon. Member for Upper Bann, who argued in earlier proceedings that the concept of ''reflective of the community'' was fundamentally flawed and impractical, and that only the qualities and qualifications of individuals should be considered when judicial appointments were made. There is a strong argument to be made that subsections (9) and (10) not only undermine and weaken the requirement of subsection (8)—that appointment should be made on the basis of merit alone—but that when put into practice, appointments ''reflective of the community'' would ultimately be incompatible with appointment on the basis of merit alone. 
 I agree with the Government that confidence in the justice system is essential, but I do not accept that there is any shortfall of confidence in Northern Ireland's judiciary that is worthy of mention. In short, there is no need for the provisions contained in lines 24 to 38; those provisions are more likely to undermine confidence in the judiciary and the judicial system than to promote it. Where is the evidence to 
 support the allegation that Northern Ireland's judicial system, and the judges that are an integral part of it, are unfair or biased? 
 Although I had differences of opinion with Lord Mayhew when he was Attorney-General and Secretary of State for Northern Ireland, I accept the view that he put forward when the Bill was debated in another place. He stated that he did not recall 
''any serious lack of public confidence in the judiciary ever manifesting itself.''
 He commented that 
''the judiciary of Northern Ireland, appointed as it has been by the Lord Chancellor, has earned a superb reputation for its fairness and impartiality, to say nothing of its courage and dedication to the rule of law.''
 He continued that there was 
''no significant or telling imbalance'',
 that 
''members were appointed . . . solely on merit'',
 and that 
''marginally more appointments were made from those with Catholic backgrounds''.
 He argued that 
''public confidence in the judiciary has been deservedly very high.''—[Official Report, House of Lords, 16 December 2003; Vol. 655, c. 1107–08.]
 The Committee is aware that the concept of ''reflective of the community'' has replaced ''representative of the community'', and that is without doubt a step in the right direction. Nevertheless, the concept of ''reflective of the community'' has the potential of moving us towards the mistaken and fallacious 50:50 equality of outcome approach, especially when one bears in mind the genesis of the Bill: the Hillsborough declaration in March 2003. It is hard to avoid the conclusion that the Government are once again trying to appease the provisional republican movement and its fellow travellers. Some time ago, the Government fell into the trap that once one starts paying the blackmailer, he comes back for more. This aspect of the Bill is another classic illustration of that. 
 The equality of outcome approach was not sanctioned by the Belfast agreement, so that does not provide justification for it. It is not what the Equality Commission is charged to achieve, nor is it what is meant by human rights instruments when the commission talks of equality. In those cases, the reference to equality means equality of opportunity and the requirement that individuals are treated fairly. That is already the case with judicial appointments and no additional legislation is required. 
 In the Minister's winding-up speech on Second Reading, one statement particularly caught my attention. He asserted: 
''The criminal justice review, which the Bill builds on, is about modernising the system of appointments in line with the changing needs of society.''—[Official Report, 10 March 2004; Vol. 418, c. 1616.]
 I suggest that those words encapsulate a fundamental difference of opinion between the signatories of the amendment and the Government. The Minister argues 
 that the judicial system must be modernised to keep it in line with the ''changing needs of society'', but what does he mean by that? What objective criteria or mechanisms are there for determining the changing needs of society? How are the alleged changes to be qualified and quantified, and by whom? Any attempt to do that is an exercise in subjective judgment. Moreover, even if we could agree about the changing needs of society, they are by definition transient and an unreliable basis for making judicial appointments. 
 I take the view that, in reality, the qualities required for appointment to judicial office are timeless; they should be unaffected by transient social changes. 
 The merit only grounds for judicial appointment should not be debased in pursuit of the idol of political correctness. It is deeply worrying that the Belfast agreement's institutionalised sectarianism might be extended to judicial appointments, albeit through the back door.

John Spellar: For a considerable period in the history of this country, all judges were male. Does the hon. Gentleman think that changes in society should not be reflected in the judiciary?

Andrew Hunter: Changes in society are reflected, as all institutions evolve over time. My objection is to the imposition of change through legislation. No further legislation is needed because of the balance that already exists in the Northern Ireland judiciary. Of course, as society changes over time, all institutions will reflect that. My quarrel is with legislation imposing a requirement for change.
 Having addressed that point, I shall make a final observation to the Minister. Although I do not expect it to happen, it is imperative that the Government reconsider and reflect on the provisions contained in lines 24 to 38 of clause 3. We certainly support a system of transparent, open and fair judicial appointment that is free from political motivation and politicisation, but I do not believe that such objectives can be achieved unless those lines are withdrawn from the Bill.

Dominic Grieve: I want to concentrate on amendments Nos. 12, 56 and 13, but before doing so, it is perhaps worth passing comment on the points made by the hon. Member for Basingstoke (Mr. Hunter), some of which are extremely valid. We have embarked in Northern Ireland on the process of institutionalising equality in order to achieve a non-sectarian society. That is undoubtedly difficult to achieve in practice and may have undesirable side effects. We need consider only one example. The pool of talent from which the judiciary can be recruited is not, and cannot be, reflective of society, any more than doctors or any other group can be.
 As is the usual tendency with Northern Ireland legislation—indeed with all legislation—we do not want to grapple with the issue, which is the creation of a judiciary with no sectarian bias by upbringing or inclination. It ought to be possible to appoint people to discharge judges' functions properly, irrespective of their sectarian background. That is the aim, but as 
 usual the legislation fudges it in what can only be described as politically correct terminology. We are likely to continue to do that. I reluctantly accept that there has been a lot of pressure behind this amendment to spell out what should be the ultimate state of the judiciary. The clause has the saving grace of the words 
''made solely on the basis of merit'',
 which go some way to drawing the sting from what is otherwise a very unsatisfactory proposal. However, that is not to say that clause 3 cannot be improved.

Andrew Robathan: Before my hon. Friend continues, is it not the case, whether one likes it or not, that because of this Government's policies, the two largest parties are now Sinn Fein, which does not accept the authority of this Parliament and whose members do not take their place in it, and the DUP—among whose members I have many friends—which is considered to be on the more extreme wing of Unionism? In order to reflect society, will the majority of members of the judiciary have to be supporters of the DUP or Sinn Fein? Is that the logical consequence?

Dominic Grieve: As the wording is illogical, I do not think that that will be the logical consequence, thank goodness. The consequence will be that a group of people sitting in a room making appointments will look at a person's background and say, ''Is he Catholic or Protestant? Will we end up with a judiciary that appears to be largely Protestant or largely Catholic?'' That will influence their decision on who is appointed next. If the saving provision, which contains the words
''solely on the basis of merit'',
 is properly applied, it should ensure that thoroughly competent judges are appointed. 
 On the other hand, it will also mean that at times an extremely competent person, who should be appointed, is not appointed when he might have expected to be, and that someone who is about as competent, or at least over the threshold of competence, is preferred to him because at the time it looks better on the balance sheet of Protestant and Catholic judges. It will also have a contributory effect in that someone who is neither Protestant nor Catholic will be appointed on the basis that it adds an extra dimension and suggests that the system is working well. That is the reality of the proposition.

Nick Palmer: As the hon. Gentleman says, the issue reaches beyond Northern Ireland. We also discussed whether women felt represented by a largely male Parliament. In the world that the hon. Gentleman would like to see, would appointments be made only on the basis of competence? Is he is opposed in principle to people recognising people like themselves in the judiciary?

Dominic Grieve: My position is clear, which will be apparent when we debate the Constitutional Reform Bill, should it reach this House in its present form. Appointments to the judiciary should be made solely on the basis of merit. However, it is desirable in any society to ensure that all those who have merit can obtain advancement, which means that women, Catholics, people of different sexual orientation—

Andrew Robathan: Socialists?

Dominic Grieve: Indeed, and people with different political views; they should all be appointed as long as they are prepared to subordinate their views to their practice as a judge. Of course, if one notices that a group within the judiciary comes from a very narrow base, it is proper to consider why that situation has come about; it may be for one of a number of reasons. However, I would not depart from the centrality of the issue of merit, because as soon as we start to tinker with it to obtain another outcome, there are likely to be undesirable results.

Tony Clarke: Given his defence of the status quo, will the hon. Gentleman tell me why he believes that the majority of the judiciary to date come from one faith?

Dominic Grieve: We must be a bit careful here. I do not have the statistics at my fingertips, but I said at this morning's sitting—the right hon. Member for Upper Bann nodded in agreement—that the High Court of Northern Ireland had a majority of Roman Catholic judges. That is a matter of delight, and irrelevance, to me, because it should not influence or be relevant to the discharge of their functions.

David Trimble: I apologise for interrupting the hon. Gentleman's flow, but he made that comment earlier, interpreting my nod in a way that was not intended. I am not fully au fait with the position with regard to the community background of the Northern Ireland judiciary. My understanding is that of the four judges in the Court of Appeal and above—the three Lord Justices and the Lord Chief Justice—three are from a Catholic background. I do not know the position with regard to puisne judges. I am afraid that the hon. Gentleman interpreted my nod as indicating that the majority of High Court judges had a Catholic background, but it is the majority of those superior to High Court judges. I have no idea about the position among puisne judges, and I caution people against making assumptions.

Dominic Grieve: I am grateful to the right hon. Gentleman for correcting me, as I had misinterpreted him. I have not yet had to carry out a study into the religious affiliation of judges in Northern Ireland, so what he says may be correct.
 We know that one reason for the imbalance is historical. That is not a reason for not addressing it, but we should consider the state of the judiciary in England and Wales. It was said earlier that there was an insufficiency of women judges, and there are certainly far fewer female judges than male, but we have only to look at the statistics on entrants to the Bar to see that a continuing shift towards more women judges is likely simply because the pool of entrants has changed so dramatically compared with, for instance, when I started my career as a barrister. 
 The same applies to ethnic minorities in England. Currently, about 18 per cent. of entrants to the Bar are from an ethnic minority, which is considerably higher than the percentage in the population at large, and we are likely to see change come about when those people become eligible for judicial appointment. That all 
 shows that evolutionary change can take place without statutory manipulation.

John Spellar: The hon. Gentleman has come to the nub of the point. As we are seeing a change in the pool from which appointments are made, do we not expect that change to be reflected in those appointments? We would be surprised if the appointments were not reflective, so it is legitimate to build in a duty for them to be so. That is why we use the term ''reflective'' rather than providing for a representative quota. We are not tying the number to a mathematical formula, but looking at trends and how they will be reflected. By encoding that, we are trying to ensure that a process that could and should happen actually does happen.

Dominic Grieve: The Minister makes a valid point. However, it could equally be argued that if the facts are as the Minister has stated—and I agree with them—there is no need to encode anything and that the change will happen of itself because the proper frameworks have been set up through the Judicial Appointments Commission. This is undoubtedly an important issue, and I want to do justice to the contribution made by the hon. Member for Basingstoke. However, I do not want to get bogged down, so I shall turn to my amendments.
 I will not seek today to get rid of the whole clause, but I want the Minister to focus on our amendments. They concern what constitutes a programme of action. If the programme of action is to be along the lines that the Minister has identified, it will not be one in which a group of people sit round a table and ask how many members of each religious group are present in the judiciary and how they can ensure that in six months they have made the necessary adjustments. The programme must also aim to ensure that people apply. 
 We tabled amendment No. 12 to insert the word ''continuous'' to make it clear that the programme of action is a long-term project rather than a short-term fix. The anxiety has always been that the provision would lead to short-term fixes to produce the numerical adjustments that might appear desirable. I should be interested in the Minister's comments on that. I think that the word ''continuous'' adds something to the clause and might go some way to confound the suspicions of those who think that the provision will simply lead to a rigging, whereby talent and merit come second and political correctness comes first. 
 Amendment No. 13 concerns submitting an annual report to the Lord Chancellor about the programme of action. Again I hope that the Minister will accept our proposal, as it is desirable that the House should be kept informed of what is going on. First, it would enable us to applaud progress. Secondly, it would enable us to consider whether there were any problems with what is not an uncontroversial scheme. I hope that the Government will look favourably on the amendment.

Eddie McGrady: The amendment appears to be based on two presumptions. The first is that the question of equality is somehow in
 the same category as an equal outcome. As has been mentioned, equality of opportunity is addressed in the Good Friday or Belfast agreement. The hon. Member for Basingstoke seemed to suggest that securing appointments by a process that is reflective of the community excludes meritocracy, but the two are not mutually exclusive in this context. It is possible to have a reasonably practical reflection of the community while achieving the objective of meritocracy.
 The amendment does not assist the proposed duty of the commission to secure a judiciary that is 
''so far as is reasonably practicable to do so . . . reflective of the community in Northern Ireland''.
 Many of our debates this morning did not take account of that important phrase ''reasonably practicable''. One can achieve only what one can achieve. The meritocracy principle has always to be applied to the end product. Surely it is appropriate that the programme of action for appointments to judicial offices, for instance, should, as far as practicable, be reflective of the community. That does not mean that the end product will be exactly reflective of the community; that will happen only as far as is practicable. That is overridden by the final phrase in subsection (8), which is that the appointments must be made 
''solely on the basis of merit''.
 The commission has to have available for consideration 
''a range of persons reflective of the community of Northern Ireland''.
 The onus is on it to make suggestions of persons who are reflective of the community in a practicable way. I see no real reason why those principles should not be applied in everyday life; that is done in many other quarters. Why is it so offensive to many people that it should be done in the judiciary and the administration of justice? 
 The hon. Member for Basingstoke made one or two other points that seemed totally irrelevant to our debate. He suggested that the amendments appease the republican movement. If they did appease, I would probably be the most vociferous in opposing them, because my community has suffered more than anyone else from the republican movement and those in my party have suffered more than people in any other from the republican movement. I have been in my home for days on end under siege by pickets from Sinn Fein and the republican movement, and my wife and family have also been subjected to those sieges. There have also been threats against my life from other paramilitaries, so I am not in the business of appeasing extremism in any form, be it republican or Unionist. 
 I am in the business of trying to move our society forward from the isolation and division that it has suffered. We must melt the icy chill that, rightly or wrongly, pertains in certain sectors because the entire community has not been able to be involved in all aspects of life, including the judiciary and the criminal process. We must enable the entire community to be involved in those things. For that reason, I argue strongly that it is proper for these measures to be in the Bill. 
 We have the safeguards of the override provision relating to meritocracy and the fact that what is to be done on reflectivity must be done with reasonable practicality, so the outcome will not necessarily be reflective of the community. This point has been a source of many arguments, not only in this debate, but in earlier ones, as we could have an outcome that is not reflective of the community but which is the best reasonably practicable result of the process. 
 For those reasons, I oppose the amendments. I do not think that they have been proposed on a justifiable basis. I am referring to the outcome that would allegedly be achieved if the amendments were agreed to. I go back to the status quo of clause 3 as proposed, which I support.

David Trimble: I wish to make a number of points. First, I agree with the hon. Gentleman in that I do not think that the proposals are intended to be a concession to republicans. They may, however, be a consequence of other concessions to republicans. To put it crudely, the background to the legislation—the hon. Gentleman may not agree—is that the SDLP was so concerned about the electoral consequences of the other concessions that the Government were granting to republicans that it urged the Government to do some things at its behest, so that it could try to persuade the nationalist community that it was just as effective at achieving changes. That is why we have these measures, although they are not terribly well advised and some are downright harmful.
 There is another comment to make on the background. Reference has been made to judicial appointments, and I wish to place some comments about that on the record. When the Northern Ireland judiciary was formed in the 1920s, there were only five senior appointments. There was one Lord Justice as well as one Lord Chief Justice, two lords justices and two puisne judges. One of the latter five was a Catholic. The first Lord Chief Justice appointed in Northern Ireland was from a Catholic background. From then until the late 1960s, at least one of the five judicial appointments was always a person from a Catholic background. That judiciary was reflective, to use the Minister's term, of the community. 
 I can remember only one occasion in my time when it was suggested that there was anything unfair about appointments. If my memory is correct, in the mid-1960s Lord Fitt, then the hon. Member for Belfast, West, suggested that some malign influence from Stormont was holding back the appointment of Ambrose McGonigal as a High Court judge. Why someone in Stormont would want to hold back such a distinguished former member of the Special Air Service I do not know, but, irrespective of the merits of that suggestion, Ambrose was appointed to the High Court bench in about 1968 or 1969. I say that to make the point that it would be unfair of Government Members to think, because of comments that have been made, that there was some problem with appointments in Northern Ireland. 
 I must make the distinction between appointments to the High Court and above and to county courts. During the last 30 years, there was significant difficulty in persuading Catholics to take appointments as 
 county court judges. County court judges, because of their involvement in criminal proceedings, bore as much responsibility, according to terrorist circles, as High Court judges without having the same status or remuneration. Regrettably, county court judges of a Catholic background were murdered during that 30-year period. As a result, the difficulty of making appointments led to an imbalance. Those historic points help to show how unnecessary some aspects of the legislation are. 
 I shall now deal with the legislation. The Government are committed to human rights, and anyone familiar with human rights law knows that there is a huge difference between the basic non-discrimination requirement and any question of affirmative action. There is a clear line to be drawn: if we want to be consistent with human rights legislation, appointments should be made on merit and on an individual basis. 
 It is permissible to have programmes to encourage people to apply—affirmative access in that sense. The reference in subsection (10)(b) to the need 
''to secure that a range of persons reflective of the community . . . is available for consideration''
 is a perfectly legitimate form of affirmative action and it does not conflict with basic principles. However, if we go beyond that form of affirmative action—measures designed to assist and encourage people to apply and make themselves available for appointment—towards a system that implies that there must be a quota or equality of outcome, we are crossing the line and behaving unlawfully and improperly. The danger of the provisions is that, having set the standard of equality of opportunity, there will be so much emphasis on affirmative action that people tend to think, ''If we don't achieve equality of outcome, we will be in trouble.'' In that way the process becomes biased and corrupted. 
 The Government ought to be particularly careful and sensitive to ensure that they stay on the right side of the line. Subsection (10)(b) stays on the right side of the line, but subsection (10)(a) is getting dangerous. It refers to a programme of action 
''designed to secure, so far as it is reasonably practicable to do so, that appointments to listed judicial offices are such that those holding such offices are reflective of the community''.
 There is a danger that the merit principle could be overborne by people feeling that they have to secure a particular outcome. 
 The words that the Minister used in an intervention compound the danger. In response to the hon. Member for Beaconsfield, he said that the Government are imposing a duty that the judiciary should be reflective. That is not my understanding of the legislation. He said that in this Committee and there is a serious danger that that phrase, which is wrong, could be used as an interpretation of the legislation. I beg him to be more careful about the language he uses. There is no duty that the judiciary should be reflective. If there were, that would undoubtedly be wrong. Indeed, the Government may 
 have to seek another derogation from the European convention on human rights. 
 Although I see some merit in affirmative action programmes, and subsection (10)(b) might be acceptable, subsection (10)(a) is dangerous—I should be happier if it were removed. The whole concept is misconceived: it returns to the question of the definition of ''reflective''. We are dealing with judicial appointments at various levels. From whom can such appointments be made? They can be made, obviously, only from people with the relevant education, expertise and experience, so inevitably they are drawn from a limited pool. Reference has been made to appointing members of the DUP. I have no objection to that, although the best qualified member of the DUP has just declared himself a candidate for the European Parliament, so that might be a problem. There is a limited pool from which to appoint people, which even the programme of action in the Bill will not broaden—or if it does, it will take decades. 
 Encouraging more people into university education leading to legal qualifications, rather than media studies or some such, is probably good in itself, but then encouraging them to go into a particular branch of the legal profession would take a long time to have an impact—or is it intended to be a programme of action directed at existing qualified people to encourage them to apply? The most effective way to encourage people to apply for judicial appointments is to increase the salaries and the perks. That is always the simplest and best way of doing it: if there are not enough people from a particular background within the legal profession, the job should be made more rewarding and more remunerative. People are held back from applying because the rewards of staying in practice are greater than those of the bench. If that is what the scheme refers to, it is a simple matter, but if it is intended to encourage people to go to university to study law, it is really quite silly. 
 This is similar to the provision to which I referred earlier about making the commission reflective of society as a whole: there are huge impracticalities involved, as well as dangers. I should prefer the scope of the provision to be narrower. I am sorry that the hon. Member for Basingstoke and I are the only people who wish to narrow it; I fear that the uncharacteristic political correctness of the Conservative Members present has held them back. Will the Minister reconsider these matters, and in particular the language used in the legislation, some aspects of which are ill-advised?

John Spellar: It might be helpful to consider the reverse picture. We are talking about securing a judiciary that is reflective of the community, but would anyone want to get up and argue in favour of an unreflective judiciary? If it is a legitimate and proper aspiration to have a judiciary, and other bodies, that are, as far as practicable, reflective of the community, it is sensible to consider how that can best be achieved. That is why the commission should consider a programme of action designed to achieve it.

Dominic Grieve: I rather disagree, because the Minister is asking a nonsensical question. It is important to have a judiciary that commands public respect and is accepted as discharging its functions impartially and well. Those should be the only criteria. The Government intend, through the legislation, to try to ensure that that happens by providing reassurance to sections of the community that feel alienated. That is the issue, otherwise the choice of words, which the Minister emphasised, is wrong.

John Spellar: I must then part company with the hon. Gentleman. He seems to be arguing that it is irrelevant whether the judiciary or any other body is unreflective.
 My noble Friend Lord Filkin argued in the House of Lords in September that there were three good reasons for such bodies to be reflective. He said: 
''First, if one does not manage to attract more people as candidates to be selected only on merit, one is at risk of wasting talent.''
 We would all be concerned about that. He continued: 
''Secondly, there is straightforward human fairness. If one does not treat seriously people who have ability and talent, they are deprived of opportunity.
Thirdly, confidence is a factor.''—[Official Report, House of Lords, 8 September 2003; Vol. 652, c. 134.]
 I would argue that the third point is consequential on the other two—it goes to the heart of the point made by the hon. Gentleman about public confidence. If there is a belief that we are not being fair, or that we are wasting talent, that may lead to a decline in public confidence. That is why the clause is drafted as it is: it fully highlights the need for selection on merit, but also identifies the need, for the reasons that I have outlined, to seek to ensure that the judiciary is, in this instance, reflective of the community. That is desirable, and we therefore have to examine how to achieve it. That is why we talk about a programme of action rather than a prescribed outcome. We are talking about an input rather than a prescribed output. 
 It is reasonable to suppose that that would include investigating possible equal opportunity issues, and examining how to stimulate interest from a broader range of applicants suitable for judicial office. We believe that by stimulating such interest, it should be possible to achieve a more reflective judiciary without compromising the merit principle.

Dominic Grieve: I do not want to make the Minister's time more difficult, but the issue centres on what ''reflective of the community'' means. A Protestant judge of the High Court is not likely to be very reflective of life on a north Belfast Protestant housing estate, but it is likely that he will—or may—command at least some measure of respect for being a person who will discharge his functions properly. That is the difficulty with such choices of words, which are then elevated into mantras, because any detailed analysis shows that they do not really mean what the Minister is trying to say that they mean.

John Spellar: I thought that I was quite capable of making myself clear on that matter, as I did in an earlier debate on the membership of the commission. I talked about being reflective in terms of community
 background, gender, age, ethnicity and disability, and also reflective of the part of Northern Ireland with which the appointees consider themselves to be closely associated. I said that on age, for example, there would be an inherent difficulty, because of the question of advancement through the system and the building up of experience. That is where the practicality test comes into play.
 I know that we must make progress, but I repeat that if we turned the concept round, we would need to examine the implications of saying that we were quite happy with an unreflective judiciary. 
 Amendments Nos. 12 and 56 would require the Judicial Appointments Commission to engage in a programme of continuous action rather than simply a programme of action. Although achieving a reflective judiciary will be a continuous process, and will build on past experience, I am not sure that the word ''continuous'' adds to what the Bill asks the commission to do. In response to a very similar amendment tabled in another place, the Government tabled an amendment to ensure that the commission will ''at all times'' engage in a programme of action. We therefore responded to that concern at an earlier juncture. 
 Turning to amendment No. 13, I quite agree that it is important that the Judicial Appointments Commission should report on the progress of the programme of action. Hon. Members will no doubt be reassured that there already exists an express statutory requirement for the commission to report annually on how it has exercised its functions during the preceding financial year. I am happy to assure hon. Members that such reports will include information on the commission's programme of action. Each report is required to be submitted to the Lord Chancellor and laid before each House of Parliament. Accordingly, I ask hon. Members not to press their amendments.

Andrew Hunter: I imagine that it was predictable that amendment No. 24 would give rise to a recitation of firmly held positions. That does not, of course, detract from the sincerity of the views held. I should like to turn briefly to the comments of the hon. Member for South Down, for whom I have more respect and regard than he sometimes appears to credit. I wish he would convey to us the realisation that no single political party or group of politicians in Northern Ireland has a monopoly of concern for healing historical wounds and building a sound, healthy society.
 My academic debate with him focuses on my belief that equality of opportunity for judicial appointments already exists. The danger of the line that the Government are following is converting that equality of opportunity into equality of outcome, with an entirely different outcome from what they would like. The Minister talks of the importance of creating public confidence. My fear is that the affirmative action that the Bill promotes will achieve exactly the opposite and undermine, not promote, confidence in the judiciary. 
 The debate has been quite thorough. I do not suppose that many of us are entirely happy with how it has gone. Although I will not insist on the amendment, 
 I should point out to the Minister that it addresses issues to which we may wish to return on Report. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 3 ordered to stand part of the Bill.

Clause 4 - Appointment of Lord Chief Justice

Dominic Grieve: I beg to move amendment No. 14, in
clause 4, page 3, line 5, at end insert 
 'and— 
 (c) consult the Lord Chancellor.'.

Joe Benton: With this it will be convenient to discuss the following amendments: No. 15, in
clause 4, page 3, line 7, after 'consult', insert 'the Lord Chancellor and'.
 No. 16, in 
clause 4, page 3, line 11, after 'advice', insert 
 'as to the substance of their recommendation and'.
 No. 17, in 
clause 4, page 3, line 21, at end insert— 
 '(7) Any recommendation made to the Prime Minister under this section shall contain no fewer than 2 names.'.

Dominic Grieve: This is an important clause. It provides that there is system of consultation and recommendation for senior judicial appointments involving the First Minister and Deputy First Minister. That form of consultation is laid down in a statutory form. Our amendments require consultation with the Lord Chancellor at which time the First and Deputy First Minister might make any such recommendation. There must be good grounds for involving the Lord Chancellor in that process.
 Looking back to our debate this morning I can see that if he ever disappears and is replaced by the Secretary of State for Constitutional Affairs, the argument might be different, but for the moment there is a Lord Chancellor. He is the head of the judiciary, and that also applies to Northern Ireland, where he has a role. In those circumstances, it strikes me as rather odd that he is excluded from the process as laid down in the clause. Indeed, I cannot but think that one reason why he was excluded is that when the Bill was originally drafted, the Lord Chancellor did not feature, so his alter ego and eventual replacement was named instead. As we still have a Lord Chancellor, he should be consulted, and I will be interested to hear the Minister's response on why he was either removed from the process or never included in the first place. 
 On the role of the Judicial Appointments Commission, I confess that I find subsection (5) odd and hard to follow. It is worth reading out: 
''The Northern Ireland Judicial Appointments Commission shall give to the First Minister and deputy First Minister advice as to the procedure which, whenever they are required by the Prime Minister 
to make any recommendation under subsection (3)(a), they should adopt for formulating that recommendation.''
 What does that mean? If the advice is only procedural, will the commission be allowed to say only that the First Minister and the Deputy First Minister should sit down in a room one afternoon, decide whom they want and then send the recommendation off to the Prime Minister? If the advice is on anything more, it will concern substance rather than just procedure. 
 I would be mystified if there was no advisory role for the commission on the substance of who should be appointed. As one of the Bill's purposes is to remove the taint of political or sectarian bias, why should the commission not suggest to the First Minister and the Deputy First Minister the two or three people whom they should consider? After all, the commission will have the expertise, which the First Minister and Deputy First Minister are unlikely to have. That is not because of any specific failings, but unless they happen to be lawyers or are intimate with the legal profession, they may have great difficulty in working out the best people to appoint. Furthermore, one would have thought that if they were doing their job properly, they would informally consult the Judicial Appointments Commission anyway. 
 For that reason, the Minister should explain the role that the Judicial Appointments Commission will have under subsection (5). In doing that, he should bear it in mind that the commission will be well placed to provide the advice that the First Minister and Deputy First Minister will need in proposing appointments. 
 Finally, and perhaps most importantly, there is the question of what is being forwarded to the Prime Minister. The procedure envisages that one name will go to the Prime Minister for approval. I presume that the Prime Minister may reject the name and compel the First Minister and Deputy First Minister to reconsider the appointment. Is that sensible?

Alistair Carmichael: I am intrigued by the hon. Gentleman's comment that one name will go forward. My reading of new subsection (3)(a) is that it does not necessarily envisage a single name. According to it, the Prime Minister shall
''require the First Minister and deputy First Minister, acting jointly, to make a recommendation to him concerning the appointment in such form as the Prime Minister may specify''.
 If the Prime Minister specified that he wanted two names, he would get two names.

Dominic Grieve: The hon. Gentleman may be right, but equally the procedure could result in only one name going forward.
 To pick up on the hon. Gentleman's important point, another oddity that creeps into the system is that the Prime Minister is given the power to make the specification. That raises an interesting question: what are the First Minister and Deputy First Minister actually doing? Either they are being given an important role in the procedure, which is what I expected that the Government wanted, or they are not. Under the new subsection, the specification could be in such terms that only one name already known to the Prime Minister could result from the process, but I do 
 not think that the parliamentary draftsmen intended that. 
 In Northern Ireland legislation, drafting is often opaque: I remember the first time I considered the Bill that became the Public Processions (Northern Ireland) Act 1998, which referred to the playing of ''musical and other instruments''; when I inquired what an ''other instrument'' in a band was, nobody seemed to know, so it was deleted. I am always wary of the opacity that creeps in, and of course the Good Friday agreement is one of the most opaque documents known to man. It is probably totally deliberate here, but it is better to be more specific. If the reality is that the Prime Minister will always ask for two names, surely we should say that two names should go forward. If not, why have this funny bit in paragraph (a), to which the hon. Gentleman draws attention? The purpose of being in Committee is not to take dogmatic standpoints but to probe the Government and find out what is going on, so can the Minister enlighten us? It would be much more sensible if two names were prescribed: it is a commonly accepted practice in our constitution. Archbishops of Canterbury are appointed on the recommendation of two names to the Prime Minister, so the practice has been around a long time. 
 If we end up with one name going to the Prime Minister, the danger is that he may reject the name; the other danger, as highlighted by the hon. Member for Orkney and Shetland, is that the system will be rigged from the outset and the public will say that the First Minister and Deputy First Minister had no discretion in the matter. Neither solution is desirable, so I hope that the Minister will respond positively.

David Trimble: The most significant changes in clause 4 are the proposed changes to section 12(3) of the Judicature (Northern Ireland) Act 1978, as amended by the 2002 Act. The provisions in new subsections (5) and (6) to the 1978 Act are largely the same as those in the 2002 Act, but there is a significant change in new subsection (3) in comparison with section 4 of the 2002 Act. Section 4 refers to the Prime Minister making a recommendation to Her Majesty in these terms:
''The power of the Prime Minister to make recommendations . . . is exercisable only after consultation with
(a) the First Minster, the deputy First Minister; and
(b) the Lord Chief Justice''.
 However, the Bill states: 
''Before making any recommendations to Her Majesty concerning an appointment . . . the Prime Minister shall
(a) require the First Minister and deputy First Minister, acting jointly, to make a recommendation to him concerning the appointment''.
 That is where the change occurs. 
 The other provisions concern the procedure to be adopted by the First Minister and Deputy First Minister in making an appointment and the taking of advice from the Judicial Appointments Commission on that procedure. Under the 2002 Act, the Prime Minister made the recommendation to Her Majesty, but before doing so, he consulted the First Minister and the Deputy First Minister. That consultation was clearly envisaged as substantial—hence the procedure 
 set out in section 4(3). Under this Bill, the First Minister and Deputy First Minister will make a recommendation to the Prime Minister on who is to be appointed, which he will then consider. As the hon. Member for Beaconsfield says, presumably that means that the Prime Minister can decide not to recommend that person to Her Majesty for appointment. We have therefore moved from a situation in which the appointment is decided by the Prime Minister after consultation with others to one in which those others suggest a name to the Prime Minister, who has discretion to decide whether to send it to Her Majesty for appointment. That is a significant shift with regard to the appointments of a Lord Chief Justice and Lords Justices of Appeal. 
 This morning, I made some gloomy comments about the prospect for the restoration of devolution in Northern Ireland. I can refer to myself only as someone who was once First Minister; I cannot even say the once and future First Minister, because the future might be a long way off. However, I would be very uncomfortable with the proposal. It is undesirable for the selection to be made by the First and Deputy First Ministers, subject to a veto by the Prime Minister, but that is essentially what we are talking about. 
 At present, under the 2002 Act, the selection will be made by the Prime Minister, subject to consultation with the First and Deputy First Ministers, and we are comfortable enough with that. However, for the selection to be made by the First and Deputy First Ministers subject to a veto exercised by the Prime Minister is a huge shift for which no explanation has been given. It is important that it should be explained, especially in the light of all that has been said about excluding political influence from appointments and with regard to other appointments made by the Judicial Appointments Commission, which comes in simply to advise the First and Deputy First Ministers on the procedure they are to follow in making a recommendation. 
 Making a recommendation is making a selection, so if I understand it correctly, the power to select means that with regard to senior appointments, the selection is done by the First and Deputy First Ministers after they have been advised on the procedure by the Judicial Appointments Commission, and it is subject to a veto by the Prime Minister. Is that the case? If so, why the enormous shift from the 2002 Act to a procedure for very senior appointments that is so different with regard to the Judicial Appointments Commission from that for lesser judicial appointments? I should be happy to have the Minister's guidance.

Eddie McGrady: Senior judicial appointments are the subject of a firm commitment by the Government, which is not reflected in the Bill or the amendments. The Government's summary of commitments in respect of new criminal justice legislation, published in March 2003, states:
''In respect of appointments of Lord Chief Justice and the Lords Justices of Appeal, the First Minister and the Deputy First Minister acting jointly will make recommendations to the Prime Minister, who in turn will recommend appointments on that basis.''
 That basis is the submissions made by the First and Deputy First Ministers. That undertaking was given to implement recommendation 75 of the criminal justice review so that the Deputy First Minister would have effective control of senior judicial appointments upon devolution of the justice powers, rather than the Prime Minister. 
 The Bill as drafted merely obliges the Prime Minister to consider the recommendations of the First and Deputy First Ministers; he is not obliged to make those recommendations to the Queen; and it is he rather than the First and Deputy First Ministers who has effective control of the appointments. It further increases the Prime Minister's control, as he is allowed to specify the form of the recommendation to be submitted by the First Minister and the Deputy First Minister. For instance, he can dictate the number of nominations in the review, allowing him to decide from any number on a list of whatever size. The procedure for making recommendations must also be agreed by the First and Deputy First Ministers with the Prime Minister, which again contradicts the undertaking given by the Government in their summary of commitments in March 2003. 
 The role of the Prime Minister should be confined to acting on the basis of the recommendations of the First and Deputy First Ministers, as agreed by the Government. He should not be able to overrule the recommendations made to him, to dictate the form of the recommendations or to exercise a veto over the procedure to be followed by the First and Deputy First Ministers when making the recommendations. 
 It should always be remembered that, under the Northern Ireland Act 1998, the office of First and Deputy First Minister is a joint office, and not two distinct offices. I accept that the First and Deputy First Ministers need guidance on making recommendations and should seek the advice of the Judicial Appointments Commission on what procedures to follow. If they depart from the commission's recommendations, they should have to advise publicly why they have done so. 
 What we have before us, however, is a derogation of the clear written commitments that the Government entered into last year as a consequence of the negotiations at Hillsborough. Therefore, although I will not oppose the clause, I certainly want to make known my reservations about the fact that the Government are not fulfilling a solemn undertaking given in a written document.

John Spellar: I say to my hon. Friend the Member for South Down that the clause gives the First and Deputy First Ministers a central role in the appointment of the Lord Chief Justice and the Lords Justices of Appeal. It is difficult to conceive of the Prime Minister not basing his recommendation to Her Majesty on their recommendation to him. Equally, we do not believe that the review envisaged the Prime Minister as merely a post box. Therefore, I think that we have got the balance right.
 Opposition Members asked about the genesis of the provisions. The clause accurately reflects the recommendations of the criminal justice review, which states that 
''responsibility for making recommendations to Her Majesty The Queen would lie with the Prime Minister, as now, but on the basis of recommendations from the First Minister and Deputy First Minister.''
 The review went on to state that 
''the First Minister and Deputy First Minister should consult with the Judicial Appointments Commission over the procedure to be adopted''.
 We continue to believe that the Judicial Appointments Commission will be best placed to advise the First and Deputy First Ministers on the procedure to adopt for formulating a recommendation to the Prime Minister, while the clause gives the Prime Minister flexibility as to the number of names he might require from the First and Deputy First Ministers. We therefore feel that we are implementing the criminal justice review and that the procedure will be an effective way of dealing with an extremely important appointment. 
 I shall now deal with the amendments in turn. Amendment No. 14 would require the Prime Minister to consult the Lord Chancellor before making recommendations, and amendment No. 15 would require the First and Deputy First Ministers to consult the Lord Chancellor before making a recommendation to the Prime Minister. It is not necessary for both the Prime Minister and the Lord Chancellor to be involved in this already robust process. The clause will come into effect only upon devolution of justice. After devolution of justice, the Lord Chief Justice, not the Lord Chancellor, will be the head of the judiciary in Northern Ireland. It is therefore not necessary to make statutory provision for consultation with the Lord Chancellor. There is nothing to prevent either the Prime Minister or the First Minister and Deputy First Minister from consulting the Lord Chancellor if they so wish. On that basis, I ask hon. Members not to press amendments Nos. 14 and 15. 
 Amendment No. 16 would ensure that the Judicial Appointments Commission, as well as advising the First Minister and Deputy First Minister on the procedure to adopt when making senior judicial appointments, would advise on the substance of the recommendations. Recommendation 85 of the criminal justice review states that 
''the First Minister and Deputy First Minister should consult with the Judicial Appointments Commission over the procedure to be adopted''.
 It did not recommend that the commission should provide advice on the substance of recommendations to the Prime Minister. That would give the commission a role in individual appointments to senior judicial offices, which was never intended.

David Trimble: Would the Judicial Appointments Commission have any role in the appointment of High Court judges? Such appointments would be of an individual nature.

John Spellar: The review was clear that the commission's direct involvement in appointments should cease at the level of High Court judges. We
 recognise that there is a difference with regard to the two appointments in question, not least because of the small number of people involved.

David Trimble: The Minister is bringing in a commission with the objective—I doubt that it will be achieved—of ensuring that there is no political influence in appointments up to the level of High Court judge. Then it stops and more senior appointments are to be explicitly political.

John Spellar: The 2002 Act also envisages those arrangements, as does the review. It therefore ensures that the procedures for senior judicial appointments are based on a recommendation from the First Minister and the Deputy First Minister to the Prime Minister. That is clearly the position that is outlined in legislation and also in the review. That is why we are following it through.

David Trimble: The point of my earlier intervention was to ask the Minister not whether he was following the instructions that he had received, but whether he was content with a situation in which the objective—again, I do not think that it will be achieved in practice—is to exclude political considerations from minor appointments up to High Court level, while most senior appointments are to be made by an explicitly political process. Is he content with that?

John Spellar: We have such appointments in many cases, including that of the Archbishop of Canterbury. We therefore think that such procedure is the right way of handling the issue. That is the basis of the work that we have undertaken. It has been agreed by the House in previous legislation, pretty exhaustively covered by the review and crawled over by many of those who have debated it. We think that that is the appropriate way of handling the issue, and that is why we commend the clause to the Committee and ask hon. Members not to press their amendments.

Dominic Grieve: This has been an illuminating debate. I do not have the time to follow Northern Ireland affairs as closely as I would like, and I was not party to the Committee stage of the 2002 Act. I appreciate the existence of links between the two measures, but some of the subtle nuances between them have not always reached me. I was therefore interested to hear the contributions of the right hon. Member for Upper Bann and the hon. Member for South Down about the background to the proposal before us. The latter described the agreement that he understood existed over the role of the First Minister and his deputy in the appointment of the senior judiciary. It appears that he has been misled and that the Government are in fact implementing a markedly different proposal, although I accept from what the Minister said that it tallies fairly closely with what the review suggested.
 My earlier comment that there was something opaque about the provision was spot on. On the one hand, the Government have given assurances about the increased role of the First Minister and his deputy, but on the other, the detailed drafting has included mechanisms to neutralise the measure's impact, possibly because of anxieties about whether it could be implemented in the unfortunately continuing environment of tension in Northern Ireland. That 
 explains the bizarre wording of new subsection (3)(a), which was rightly highlighted by the hon. Member for Orkney and Shetland. 
 I am mindful of the Minister's difficulties and the comment of the right hon. Member for Upper Bann that it might have been better to leave the process as it was, with the Prime Minister continuing to take the decision.

John Spellar: The legislation already passed by Parliament envisages a considerable role for the First Minister and Deputy First Minister. It is right to point out that there have been some changes to the procedure, but the crucial and significant involvement already exists. The principle has been established, so the hon. Gentleman should not follow the right hon. Member for Upper Bann down the path of not wanting political figures to be involved in the appointments.

Dominic Grieve: I disagree. There is political involvement in the appointments process, as there is in all judicial appointments processes. I do not want to be diverted too much, but I point out the great irony in the fact that although the Constitutional Reform Bill talks about the separation of powers at the United Kingdom, England and Wales levels, there is actually no such thing. Indeed, such separation is unachievable because such decisions have to be political, although preferably taken on non-political grounds. That is why even the Constitutional Reform Bill includes a provision ensuring that the Prime Minister and Secretary of State for Constitutional Affairs—or Lord Chancellor, as the post is now—will ultimately have to take certain decisions in the appointment of our higher judiciary. I do not dispute that fact, but I am irritated by the suggestion that a new world is opened up by following the Constitutional Reform Bill road. It is not; there is inevitably still a degree of political involvement.
 The new system under the 2002 Act envisaged that the Prime Minister had to consult the First Minister and his deputy. I accept that that was a major departure from previous practice, but it is different from asking the First Minister and his deputy to advise the Prime Minister and give him a recommendation. That is the significant shift in this Bill. However, whether it was done at the last minute or not, the Government have had cold feet about it and have introduced a mechanism by which the Prime Minister still exercises substantial control over the process. 
 I do not know whether that is desirable. It may be inevitable, although I may question why we are going down such a road at all, especially if it ultimately ends up with a fudge. However, if there are anxieties about the ability of the First Minister and his deputy to come up with an acceptable recommendation, it would be much better to call a spade a spade and say that they have to come up with two names. That proposal was debated in the Lords, where it was suggested that three names should be put forward. 
 Of all the amendments that we have tabled, amendment No. 17 is the most important, and I intend to press it to a Division. It would be much better to have two names going from the First Minister 
 and his deputy to the Prime Minister. If we agreed to the amendment, it would then be perfectly possible to reword new subsection (3)(a) so that the opaque part of it was removed. I apologise to the hon. Member for South Down for not taking up that point earlier. I share his disquiet about the fact that new paragraph (a) has apparently given on one hand and passed on a responsibility, but is so worded that it allows the Prime Minister to fix the entire procedure. That is the recommendation that I make to the Minister. 
 For the moment, I wish to press amendment No. 17 to a vote, but I am sympathetic to what was said by the hon. Member for South Down about new paragraph (a). One would need to return to the assurances that he understood were being given. I think that we have ended up with a sleight of hand by which the appearance is given of responsibility in a devolved Administration, but the reality is otherwise.

David Trimble: To ensure that there is no misunderstanding, the hon. Gentleman is referring to assurances that may have been given to the hon. Member for South Down. Indeed, the latter made reference to an agreement. Let us be clear about that. The arrangements to which the hon. Member for South Down refers are called the joint declaration. This particular aspect of it was not subject to the agreement of any Unionist, nor was any Unionist consulted on the matter.

Dominic Grieve: I did fully appreciate that that was the reality. I was quite sure that the right hon. Gentleman would have told me if he had been party to that particular discussion. I inferred that the hon. Member for South Down was left with such an impression as a result of the discussions. All I can say is that his impression, if it is correct—I have no reason to doubt his good faith in saying that that was the impression he got—is at variance with the strict wording of the clause. The right hon. Member for Upper Bann may say that it would be much better to leave things as they are, and I have some sympathy with that.
 If the Government are determined to go down this road, it would make much more logical sense for two names to go forward with a clarification that beyond that point the Prime Minister does not have a power to rig the process, rather than leave a situation where there is a danger of people saying that they were duped into understanding that the process would be carried out in a particular way. I cannot see how that is helpful to any aspect of achieving devolved government or the peace process in Northern Ireland. That is my personal view, but I do not think that the hon. Member for South Down disagrees with me, and I am not sure whether the right hon. Member for Upper Bann would disagree with me. 
 I understand the right hon. Gentleman's point that he would prefer the existing system to remain. We made it clear in the Lords that we would prefer that, too. As I am trying to help the Government, I hope that the Minister will accept my ideas within the constructive framework in which they have been 
 introduced. To help him along the way, I would like to put amendment No. 17 to the vote, but first I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Amendment proposed: No. 17, in 
clause 4, page 3, line 21, at end insert— 
 '(7) Any recommendation made to the Prime Minister under this section shall contain no fewer than 2 names.'.—[Mr. Grieve.]
 Question put, That the amendment be made:—
The Committee divided: Ayes 5, Noes 11.

Question accordingly negatived. 
 Clause 4 ordered to stand part of the Bill.

New clause 1 - Removal or suspension from

'In section 7 of the 2002 Act in subsection (5) (agreement of the Lord Chief Justice required to the removal or suspension of a person from a listed judicial office) for ''without the agreement of'' substitute ''except after consultation with''.'.—[Mr. Spellar.]
 Brought up, and read the First time.

John Spellar: I beg to move, That the clause be read a Second time.
 The 2002 Act set up a system for removing listed judicial office holders from office. The power to remove a judge is exercisable by the First and Deputy First Ministers acting jointly. A judge may be removed only if a tribunal convened under section 8 of the 2002 Act recommends that he be removed on the grounds of misbehaviour or inability to perform the functions of the office. That system will come into effect after the devolution of justice. By ''listed judicial office'', we mean anyone up to and including a High Court judge, although the system will apply only to High Court judges appointed after the devolution of justice. 
 The new clause removes the requirement for the Lord Chief Justice's agreement to the removal or suspension of a person from a listed judicial office. The Lord Chief Justice will, however, be consulted on the removal. The removal of a person from a listed judicial office will occur only on the recommendation of an independent tribunal. Such a tribunal will be chaired by a Lord of Appeal in Ordinary, the Lord Chief Justice or a Lord Justice of Appeal and will have another senior judicial member as well as a lay person. The Lord Chief Justice will also determine the procedure of the removal tribunals and select their judicial members. 
 Given the robust and careful arrangements that the 2002 Act already provides in respect of judicial removals, there is no need for the Lord Chief Justice to have a veto. Indeed, it is difficult to think of any circumstances in which the Lord Chief Justice would not agree with the recommendation of an independent and distinguished tribunal that a person be removed from judicial office. Accordingly, there is no reason why he should have the power that the 2002 Act provides.

David Trimble: If the Government believe that there is no need for the Lord Chief Justice to have a veto, why did they enact a veto in 2002? The Minister has a duty to tell us why that was done and why the Government have changed their mind. If the new clause had been introduced by Opposition Members, the Minister would tell us that the principle was settled in 2002 and we should not be reconsidering it, so I must put the same point to him. I do so in a genuine spirit of inquiry to find out why the Government gave the Lord Chief Justice a veto in 2002 and why they are withdrawing it.

John Spellar: We have reflected on that, and I am advancing some reasons why our further consideration has led to the belief that I have outlined. We have extensive mechanisms in place to deal with the highly unusual circumstance of a judge being removed. We then move to the other almost inconceivable situation of a Lord Chief Justice vetoing the decision of a tribunal that he played a considerable role in setting up—indeed, a committee of which he or one of the very senior judges has been part. We anticipate that the circumstances in which such tribunals are needed will seldom arise. A judge may be removed only if a tribunal has reported recommending that he be removed on the grounds of misbehaviour or inability to perform the functions of the office.

Dominic Grieve: Can the Minister help me? I was not in Committee when the 2002 Act went through Parliament. Why was the veto mechanism requiring the agreement of the Lord Chief Justice included?

John Spellar: I would have to refer to colleagues who dealt with that to find out why it was important. I have described the considerations that we examined and the almost inconceivable set of circumstances that would require such a veto.

David Trimble: In keeping the debate going, I hope that assistance might come to the Minister to enable him to explain the thinking behind the 2002 Act. I am in the same position as the hon. Member for Beaconsfield, not having been involved with that Act, so this is all news to me too. In view of the origins of this legislation, I want to put a specific and important question to the Minister: were any representations made to the Government on this change, and if so by whom? Where has this come from?

John Spellar: I will have to get back to the right hon. Gentleman as to any particular reasons, cases or considerations that may have given rise to this, but I have outlined the arguments that led us to believe that the 2002 Act is unnecessary in that regard, and therefore the reason for tabling the new clause.

Desmond Swayne: The Minister's principal argument is that it is inconceivable that the veto would be exercised. If that is genuinely inconceivable, is it worth tabling the new clause?

John Spellar: I do not think that it is necessarily good practice to retain redundant legislation or legislation that does not relate to real circumstances. I have described at length the procedures involved in the unlikely circumstance of there being a need to consider the removal of a judge from the bench, and therefore the already considerable involvement of the Lord Chief Justice in that process. We must then consider the question whether the Lord Chief Justice needs such a power in that process—the senior judiciary, including the Lord Chief Justice himself, is already deeply involved—and whether one person who is part of the process should have a veto over the rest of it.

Dominic Grieve: I am sorry to press the Minister again, but the Government must know their business. It must be possible for him to be briefed as to why the 2002 Act gave that veto to the Lord Chief Justice. I find it extraordinary that in a debate that he knows was contentious in another place—he has had to re-table the new clause—he is unable to tell the Committee why the decision to put the veto in the legislation was made, so that we can understand whether the Government's arguments for removing it are valid. Frankly, it would be useful to know.

John Spellar: I have given a considerable number of arguments as to why the procedure as outlined in the 2002 Act is not required. The reason is the considerable involvement of the senior judiciary, including the Lord Chief Justice, throughout the procedure for the possible removal of a senior member of the bench. We considered that power and concluded that it is unnecessary. It was not part of the review and we felt therefore that it was not adding to the process. The new clause probably more properly reflects due process.

David Trimble: I wanted to give the Minister another opportunity to answer the last question that I put to him: has any representation been made to the Government about the matter? What is its genesis? Were any party or other Government involved in making suggestions to the Government about it?
 I ask those questions simply out of the normal paranoia that we all have, a paranoia that is reinforced by one's knowledge of the origin of the legislation. I want the Minister to return to that matter. I would not ask the question if it were not for that paranoia, and if it were not for the unexplained matter of why the provision was put in and is now to be taken out. 
 If one were receiving the provisions de novo, one would note that the detail of the operation of the procedures for removal is not contained in the criminal justice review. The criminal justice review has only a few paragraphs in very general terms about the matter. The detailed procedure has been built by the Government from a few small germs in the criminal justice review. If the Government were proposing to introduce the procedure as they would now like it to 
 be, I would not feel moved to object to it. One's concern is simply why the provision was introduced and then removed. In the context in which we are operating, and knowing what has happened elsewhere, one suspects that something nasty happened somewhere in the woodshed on the way. I want transparency and openness from the Government about the matter.

John Spellar: We think that the provision that we are reinstating more closely reflects the recommendations of the criminal justice review, and does not impinge on the independence of the judiciary. We believe that there is a strong judicial input, and that therefore the clause stands on its own merits. We constantly receive advice from all sorts of quarters on different measures, and consider whether there is merit in those views. We believe that the proposed process is more substantial.

David Trimble: The Minister says that he constantly receives advice from all sorts of quarters. Did he receive advice on that matter? Why is he being so coy?

John Spellar: No, I have not had advice on that matter, but I am saying that the clause stands on its own merits.

Dominic Grieve: I hope that the Minister will not take it personally, but that is one of the most unconvincing explanations and performances that I have heard in Committee for a long time. The clause is important, and was controversial during its passage through the House. He now seeks to change the mechanism for removal under the 2002 Act, and we are left completely in the dark as to why it has been thought necessary to make that change. The impression that he conveys is that he is either embarrassed or unable to tell the Committee about the original decision to introduce the clause and the current attempt to reinstate it.
 I can see persuasive arguments to counter what the Minister has said, which I shall outline. The mechanism that we are setting up for disciplinary issues concerning the judiciary in Northern Ireland is a novelty—or was a novelty before the 2002 Act. It is well known that the system in England and Wales requires a resolution of both Houses of Parliament to remove members of the senior judiciary, which has historically taken place on the recommendation of the Lord Chancellor. The last time that that occurred was sometime in the early 19th century. However, I suspect that there may have been a threat to do so about 10 years ago, but that the person concerned left because it was suggested to him that such a resolution might follow if he did not consider his position. 
 Whatever the situation, one has to think carefully about the implications of moving away from that model. The Minister and I, and the rest of the Committee, will share the view that judicial independence and freedom from political pressure must be maintained. The interesting thing about the mechanism that has been proposed is that it does not involve the legislature. The Northern Ireland Assembly has no role whatever in the process. The link between the legislature and the judiciary in 
 Northern Ireland is treated for these purposes as non-existent. That may reflect the Government's assessment of the limitations of the Northern Ireland Assembly as a representative body or of the difficulties that the Assembly will face in view of the way in which it was set up. I do not know—the Minister has not condescended to tell us—but I can see that there could be difficulties. I do not want to add to his difficulties by suggesting that the Northern Ireland Assembly has to be the body that makes the decision. 
 The result of that is that the decision has been cast on the First Minister and his Deputy—that wonderful hybrid institution where two people with diametrically opposite political philosophies, in the current likelihood, have to operate together for the good of the citizens of Northern Ireland. In the 2002 Act, the Government clearly considered that that mechanism was not sufficient. They put in the extra mechanism of providing for a veto for the Lord Chief Justice. 
 The other feature of the 2002 Act is that the Lord Chief Justice in Northern Ireland becomes an important figure. He becomes the head of the judiciary once the devolved administration is set up. It seems to me—although the entire model strikes me, as a rather old-fashioned constitutionalist, as fairly bizarre—that if one is trying to provide checks and balances to ensure that there is not political pressure on the judiciary and that wrong decisions are not made by members of the Executive, the mechanism of providing for a veto by the Lord Chief Justice is sensible. The Lord Chief Justice is not God, because if we read further on in the 2002 Act a mechanism is available to remove the Lord Chief Justice from office if necessary. That mechanism extends very far and wide to involve the entire judicial establishment of the United Kingdom, or certainly of England and Wales, in that process. That is no bad thing. It is not as if the Lord Chief Justice is not answerable if he should act capriciously. 
 In such circumstances, the Lord Chief Justice's final say strikes me as eminently sensible. The Minister says that it is not necessary and that that situation could never happen. I do not know about that. I would certainly think that it is most unlikely that it will ever happen, and I hope that it is most unlikely that a tribunal ever has to be convened at all. However, just because it is unlikely, that does not mean that we should not provide a checking mechanism in a system that is untried and untested. As we know, there has been enormous difficulty in operating the Northern Ireland constitution. Otherwise, the right hon. Member for Upper Bann would have had a different career as First Minister. That is the reality of it. 
 I am afraid that I disagree with the Minister. In the absence of some cogent argument to persuade me otherwise, which has been lacking, I will resist the new clause, because I think that the arguments advanced in another place remain valid and that this is a sensible safety device to which I can see absolutely no downside.

Alistair Carmichael: I agree in large measure with what the hon. Gentleman has said. The matter was first dealt with in the House of Lords, and the Government are seeking to reinstate the position. Frankly, I regret
 that they feel that to be necessary. I do not see the need. There is no good reason for departing from the procedures followed on this side of the Irish sea, and the Government have not yet evinced one. I presume that the matter will be pressed to a vote, and I will support the hon. Member for Beaconsfield and his colleagues.

John Spellar: I reiterate that the key issue is whether any individual, however eminent and distinguished, should be able to exercise a veto in this regard, particularly when the Lord Chief Justice or other senior members of the judiciary have been involved in the process at an earlier stage and have therefore had a considerable influence on this important issue. The real question is then whether they should also have a veto within the system. On reflection, we decided that they should not. Accordingly, I seek to reinstate the clause that was removed in another place.
 Question put, That the clause be read a Second time:—
The Committee divided: Ayes 10, Noes 6.

Question accordingly agreed to. 
 Clause read a Second time, and added to the Bill.

Clause 5 - Duty of Director of

Andrew Hunter: I beg to move amendment No. 25, in
clause 5, page 3, line 30, after 'shall', insert 'within his discretion'.
 This is the second of three amendments that I tabled on behalf of the DUP. Again, it is a quest for the reason for a change, although in this instance it returns, without apology, to the 2002 Act. As the explanatory notes to the Bill make clear, section 34 of that Act amends section 55 of the Police (Northern Ireland) Act 1998, and places on the Director of Public Prosecutions a duty to refer matters to the police ombudsman. The Committee will be aware that recommendation 21 of the criminal justice review stated that the DPP should have a duty to refer to the ombudsman. The clause therefore makes the necessary amendments to ensure that the recommendation is fully implemented in line with the undertakings that the Government made in the Hillsborough joint declaration, which the explanatory notes obligingly confirm and emphasise. 
 It is highly questionable whether an attempt to achieve a political deal is the right basis for sound legislation. The primary purpose of the clause is therefore self-evident. It is also rather worrying, as it 
 re-enacts the provision in section 34 of the 2002 Act, which was designed to operate after devolved government was up and running in the Province. We have already debated that theme in another context today, but it is disturbing to see that provisions that were intended, under the review, to be enforced only after devolved government was in place, are now to be enforced before. It stands to reason that the DPP should be able to exercise his or her judgment on the referral of matters to the police ombudsman. The previous provision for discretion was sensible and practical and, with this amendment, I seek its restoration. 
 The DPP exercises discretion in comparable matters, such as whether to prosecute. What is the intrinsic difference in this matter? Why should not the DPP exercise discretion? It is hard to think of a legitimate reason. Assessing the strength of a case and the likelihood of obtaining a conviction is the essence of the DPP's job. Why is that freedom of action being denied? The independent DPP should have discretion to decide whether he has sufficient evidence to bring a prosecution. If he has, the prosecution should go ahead, thus avoiding the further delays that are inevitably created by imposing on him a duty to report the incident to the ombudsman. The Government have yet to explain convincingly why the ombudsman should have a role in the first place. The matter should be determined by the DPP and should result in criminal prosecution, internal disciplinary processes, or no action at all. 
 On Second Reading in another place, Viscount Brookeborough saw clause 5, which was then clause 6, as another instance of the Government 
''eternally tweaking the law ahead of the planned timescale in order to appease''—[Official Report, House of Lords, 16 December 2003; Vol. 655, c. 1105.]

John Spellar: The hon. Gentleman asked why the ombudsman should have a role in the first place, but he will recognise that the amended Police (Northern Ireland) Act 1998 provides that the DPP, along with the Policing Board, the Chief Constable and the Secretary of State may refer ''any matter'' to the police ombudsman. The ombudsman already has a role, and I am surprised that he is concerned about that.

Andrew Hunter: I am aware that the 1998 Act was amended by the 2002 Act. I am concerned that the ombudsman has a role in what I believe to be a matter for the DPP alone. It is unnecessary to bring in the additional dimension of the ombudsman's activities, because the matter could be dealt with by the DPP, whose primary job is to assess whether there is any evidence, and whether the case is strong enough to proceed.
 The amendment relates to the duty that was imposed in the 2002 Act, which is repeated in the Bill. On that basis, I repeat the argument that the DPP should have the supreme role. To reduce it to simplicity, he should have the discretionary powers to refer to the ombudsman. On that, I rest the case.

Alistair Carmichael: I do not necessarily agree with everything that the hon. Gentleman said, but he is
 largely right that this is something in respect of which the DPP ought to have discretion. I do not particularly like the form of words in the amendment—instead of ''shall'' it should state ''may'', which would have achieved the same end. However, inasmuch as the DPP is a professional exerciser of discretion, there may be circumstances in which a matter is de minimis—for example, when it is not in anyone's interests for it to be referred in the way envisaged. He ought to have the power not to refer it. That is not in the measure as things stand. Accordingly, there is merit in the hon. Gentleman's argument.

John Spellar: Why does the hon. Gentleman believe that the clause as drafted does not provide what he wants?

Alistair Carmichael: The Bill states:
''The Director shall refer to the Ombudsman any matter which''.
 To my mind, that does not leave him any scope not to refer a matter. Can the Minister see any scope for discretion?

John Spellar: Paragraph (a) uses the words ''appears to the Director''. How does the hon. Gentleman interpret that?

Alistair Carmichael: If it appears to the director that the police officer has committed, or may have committed, a criminal offence or has done something that will encompass disciplinary proceedings, he is obliged to refer the matter to the ombudsman. The point about having discretion is that circumstances may appear to the DPP to indicate that a police officer has committed an offence or done something that will lead to disciplinary proceedings, but it still may not be something that he thinks appropriate to refer to the ombudsman. Surely in such circumstances, which would probably be rare, the DPP ought to have the power not to refer a matter.

David Trimble: I rise to support the amendment and to agree with what has been said about it. The Minister's intervention was interesting because he queried whether the phrase
''which appears to the Director''
 introduced any element of discretion. I am not sure that it does, because to whom else would it appear? This is a duty being placed on the director, so it can operate only in respect of something that ''appears'' to him. 
 The clause continues that the director shall refer any matter which appears to him ''to indicate'' that an officer ''may have'' committed a criminal offence. That sets the bar very low indeed. A low standard is being set and there will be a huge number of referrals. The director is not required to be satisfied that an offence has been committed, or to have reasonable grounds for believing that an offence has been committed. It is sufficient if it appears to him that it may have been committed. To set the standard so low without giving the director discretion over whether to refer is an alarming development. 
 It is interesting that the Minister referred to the phrase 
''which appears to the Director'',
 which drew a lot of comment on Second Reading. Some hon. Members were concerned that it contained a discretion, and they did not want any discretion at all. I sometimes think that we are creating a crazy legal system in Northern Ireland, and one of the craziest parts, in all senses of that word, is the operations, role and remit of the police ombudsman's office. The provisions will give a huge power to the police ombudsman's office. The director will be placed under a duty to refer every case where there is any indication that an offence may have been committed. The standard is remarkably low. Persons will be subjected, as we know from experience, to oppressive proceedings. 
 Anyone who is concerned about maintaining an effective and efficient police service would recoil in horror at the provision. It would be best to give the director a discretion. That proposal could be reinforced with some later amendments, although I shall not discuss those now. I merely argue now for a discretion to be given to the director. Otherwise, a huge number of cases will be referred in which there are no real grounds for investigation. That is not a wise move.

Dominic Grieve: I shall in due course speak at greater length on clause stand part, but I completely sympathise with what the hon. Member for Basingstoke is trying to achieve. I understand the clause—that is not the problem—but I am bound to say that it troubles me. It is not the job of the Director of Public Prosecutions to cross-reference to anybody else in respect of the decisions that he must make on whether to initiate public prosecutions. The matter is as simple as that.
 Ombudsmen are there for another, important purpose. I do not disagree that the Northern Ireland police ombudsman has an important role in reassuring the public that the police always act properly. However, I do not understand the reason for the clause. I suspect that this specific clause is needed because the Government have realised that without it the DPP might well say that passing to third parties material relating to the process that he must undertake of deciding whether to prosecute is none of his business. That is exactly what the rule should be. It is not the business of the DPP to tip off Government or quasi-autonomous ombudsmen about material that comes before him. It is important both that that should be the case and that he should not be contaminated with administrative roles that are separate from his role in bringing prosecutions or deciding not to. For that reason alone, I would favour the amendment. In fact, I go much further and think that the entire clause should be deleted.

John Spellar: As the hon. Member for Basingstoke rightly said, the amendment would give the Director of Public Prosecutions a discretion over whether he should refer a case of suspected police malpractice to the police ombudsman. I should like to make it clear at the outset that the current terms of the clause are no reflection whatever on the professionalism of the Director of Public Prosecutions. The Government are obviously quite happy to endorse fully the
 independence and impartiality of the director, in whom we have every confidence.
 The Government believe that the clause accurately meets the recommendation of the criminal justice review, which was that a duty be placed on the prosecutor to ensure that any allegations of malpractice by the police be fully investigated. I am sure that no hon. Member would dispute the importance of such a provision. It is worth reminding ourselves of the context in which the review made its recommendation. Recommendations were made that the prosecutor and the police should operate effectively together, with the prosecutor being involved in a case early. The clause was therefore drafted to ensure that the discretion lies with the ombudsman, as is right in cases of potential police misconduct. 
 Although the discretion will lie with the ombudsman, the clause allows for the director to exercise some judgment—he is not simply an automaton or postbox. That would not be the effect of the amendment. It is also worth pointing out that the provision does not in any way impinge on the director's role in prosecutions, for which the decision about whether to prosecute lies with him. That is different from matters relevant to the ombudsman, who will deal with suspicion of police wrongdoing. 
 Accordingly, I ask the hon. Gentleman to withdraw the amendment.

Andrew Hunter: I acknowledge that the wording of amendment No. 25 may not be the best possible to achieve the desired objective. On that basis alone, I shall ask the Committee's leave to withdraw it. However, I believe that the amendment, imperfectly
 though it may have been worded, has drawn attention to fundamental issues to which we are entitled to return on Report.
 The Minister seemed to be in two minds, at one point beginning to argue that the discretion already existed in new subsection (4A) before moving to a different ground. I do not believe that the ombudsman should have a role in the offences covered in clause 5, as they should be the responsibility of the Director of Public Prosecutions, and if the ombudsman is to have a role, it should be at the director's discretion.

David Trimble: Towards the end of the Minister's comments, he made a reference to the criminal justice review, and I have been able to turn up what appears to be the relevant passage:
''We recommend that Article 6(3) of the 1972 Order be supplemented with a provision enabling the prosecutor to refer a case to the Police Ombudsman for investigation''.
 The word ''enabling'' shows that the provision is a discretion, not a duty. Once again, the Minister has referred to the review but is not acting in accordance with it.

Andrew Hunter: The right hon. Gentleman makes the point emphatically: the situation is not as the Minister describes.
 I rest my case. Although I am unconvinced by the Minister's response, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Further consideration adjourned.—[Vernon Coaker.] 
 Adjourned accordingly at thirteen minutes to Five o'clock till Thursday 1 April at ten minutes past Nine o'clock.